« previous | TPM CAFÉ READER POSTS HOME | next »
Is There a Fourth Amendment?
Dear Mr. Marshall:
I am eight years old. Some of my little friends say that there is no Fourth Amendment to the Constitution. They have teased me horribly because I said that I believe in it.
I said, "There must be a Fourth Amendment, or else how could there be a Fifth Amendment?"
One of the boys (it was that nasty Georgie W.) said, "Dummy, what makes you think there is a Fifth Amendment?"
I kicked him in the nuts, which was very satisfying, but it got me sent to the principal's office. The principal (we call him Mr. O), used to teach constitutional law. He said that there was a Fourth Amendment, but that it hadn't meant anything in years. In fact, he said the Founding Fathers just meant it to be an ideal, like that phrase "all men are created equal" and wasn't really supposed to be taken literally.
After I got home, I asked my cranky Uncle Dick if there was a Fourth Amendment. Frankly, he was kind of a prick about it. He said, "Shut up, kid, or I'll send you to Guant, Guantan, I mean Cuba, and have them waterboard you."
When my papa got home, I asked him. He said, "If you see it on TPM, it's usually the truth. At least if you stick to the staff-written articles. The other stuff, you're on your own."
So, Mr. Marshall, please tell me the truth; is there a Fourth Amendment? Does it mean anything?
Sincerely,
Virginia C.
Comments (10)
Yes Virginia there is a Fourth Amendment. Right between the Third Amendment (you know, the little guy no one can remember the name of) and the Fifth Amendment (most popular kid and EVERYBODY knows him).
The only problem is that no one seems clear on the limits on the government the Fourth sets.
Take the Eighth, it has a similar problem. It says no cruel and unusual punishments. But a guy gets convicted on a state law giving life imprisonment with no possibility of parole for the crime of possession of 600 gms of cocaine..
Is that cruel and unusual in the sense of the Eighth? The Supreme Court didn't think so. So what if the same state imposed a 50 year sentence on traffic tickets? Would that be cruel and unusual? Under Federalism, a state can set its own table of punishments right?
Well what about the Fourth? It exists, but what does it do?
Like the Eighth, not always what we think it should do.
When you consent to have your baggage opened by TSA on no grounds of probable cause, what would happen if you withheld consent? Perhaps you might not fly that day.
Does this violate the Privileges and Immunities Clause interpreted by the Court to imply the right of free travel between the several states?
Well yes, in a way, and no in another way.
With FISA, the Fourth is being honored in principle but circumscribed in practice. But like all such issues, the devil is in the details.
So Virginia, yes the Fourth exists.
But we're not sure of the "friends" that have been hanging around her lately.
July 5, 2008 12:03 AM | Reply | Permalink
I've always thought the 3rd was a tad shifty:
I mean, really? Does this even count as an amendment if it can be overridden by a simple law? Maybe a constitutional lawyer can help me out here. I really don't want to be forced to quarter soldiers in my house (or apartment), although I will do so willingly.
July 5, 2008 10:55 AM | Reply | Permalink
I don't think the 3rd amendment actually exists. It might be an urban myth. Did you check snopes.com?
July 5, 2008 12:36 PM | Reply | Permalink
I always thought the "but in a manner prescribed by law" in times of war part was to make sure that the quartering was appropriately regulated. But I'm no constitutional lawyer. I just ever-so-vaguely remember 7th grade.
July 5, 2008 12:42 PM | Reply | Permalink
Since there is a war on terror which is everywhere, i suppose the feds can now (once passing a law) house soldiers everywhere... I'd best pretend I don't have a second bedroom.
July 5, 2008 12:46 PM | Reply | Permalink
If it wasn't for the third amendment, we'd all have the U.S. Marines in our bedrooms.
That might be kinda fun, actually.
July 5, 2008 12:47 PM | Reply | Permalink
Wow -- I was gearing up for a serious response until I saw workerbee's post. Now I'm totally distracted, wondering if we get to pick the particular Marine who gets sent over to bunk at our place???
Ah - anyway - as to the Fourth Amendment. You know the word 'privacy' is not contained in the language, and there are judges still sitting in the highest courts of this land who insist on referring to the "so-called right to privacy" (I know because I was working with one of them and we wrestled for two weeks over a case that directly implicated the right to privacy ..... he didn't mind allowing the case to continue but he didn't want to say those words, so he wanted me to find another reaason to let the case stand. There wasn't another one. So .. he finally settled for inserting "so called")
I think it might be good to keep that in mind before we attack those, like Sen. Obama and others, who DO believe in (and who believe it incorporates privacy) and will act to protect it, even if they don't vote as we wish on each specific bill.
July 5, 2008 4:33 PM | Reply | Permalink
Sen. Obama and others, who...will act to protect [the Fourth Amendment], even if they don't vote as we wish on each specific bill.
You don't see any self-contradiction in this statement? If we can translate "they don't vote as we wish" to "they do vote to violate the Bill of Rights," then I don't see how you can not be on both sides of the fence.
A politician who supports civil liberties sometimes is one who fails to support civil liberties.
July 5, 2008 5:18 PM | Reply | Permalink
Sorry, Tank - it's just not that simple. At least to lawyers (I confess I'm one). For example, many -- many, many, many, many -- people felt that the telecom immunity bill was somehow a litmus test on whether the 4th amendment meant anything any more. I looked at it, closely, for too long a time (my dogs say - they wish I would get away from the computer) and in my legal opinion, it barely meant 'bupkus.' Seriously. I'm not going to go into why (that's done on another thread and I'm done with it), but it is absolutely true that there is a difference of opinion on whether that particular provision has any impact on the 4th amendment, and if so what impact.
And forget about it, or any bill, doing away with it altogether. No single statute is going to undo any of the constitutional rights. It doesn't work that way in the law. If anyone can erase a right, or at least part of it, it's the Supreme Court. So, yes, I really did mean what I said "Sen. Obama and others, who...will act to protect [the Fourth Amendment], even if they don't vote as we wish on each specific bill."
Right now, it's a simple choice: do you want Barack Obama or John McCain guarding our constitutional rights? (I actually would have said that both, being honorable men, could be counted on to do at least that. But after McCain's comments re: the habeas corpus decision -- which, by the way, was as close as you can get to black and white regarding the Constitution and a WAY bigger threat that FISA or especially FISA immunity! -- I'm not so sure he's thinking straight anymore, or perhaps he has had to sell his soul. That someone who spent 5 years in captivity could decry the majority decision in that case means we have entered the Twilight Zone.)
So -- the best protection for the 4th amendment (or any other part of the constituion) is the person who won't be looking for another Scalia or Thomas to put on the Supreme Court. If Kennedy or one of the others in that 5-person majority so much as sneezes, I'm considering New Zealand.)
July 5, 2008 11:10 PM | Reply | Permalink
"So, Mr. Marshall, please tell me the truth; is there a Fourth Amendment? Does it mean anything?"
Tell your friends that people are on to them and nobody believes a word they say anymore. Matter of fact, just reverse what they say and you will get to the truth. So there must be a Fourth Amendment!
I'm not Mr. Marshall, but the Supreme Court are supposed to be expert on the Constitution. Here's a Supreme Court quote that I found:
"The makers of our Constitution undertook....to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Olmstead v. U.S., 277 US 438 (1928)
I can also tell you that people sometimes lose rights they fail to protect.
July 5, 2008 7:04 PM | Reply | Permalink
Post a Comment